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“He that had as good left for his improvement as was already taken up
needed not complain, ought not to meddle with what was already
improved by another’s labor; if he did it is clear he desired the benefit of
another’s pains…” – 2nd Treatise, par. 33
o Individual Autonomy
- However, natural right theory doesn’t cope with the temporal limitation of intellectual
property rights. Intellectual property is limited in time as to the protection, according to
the law. Thus, this theory is justifiable only for corporeal ownership. However, in
intellectual property, after some time, the work will be part of the public domain.
Personhood Perspective
- Relationship between property and personhood:
o Premise: To achieve proper self-development (to be a person), an individual needs
some control over resources in the external environment. The necessary assurances
of control take the form of property rights.
o An explicit source of values for making moral distinctions in property disputes.
o This theory attempts to clarify a third strand of liberal property theory that focuses
on personal embodiment or self-constitution in terms of “things” (personality
property theory of property).
- The role of the concept of person:
o Self-identification through object varies from person to person.
But if property for personhood cannot be viewed as other than arbitrary
and subjective, then personal objects merely represent strong preferences.
o Person:
“persona” -> Roman Law: an entity possessing legal rights and duties
Kant: the person is free and rational agent whose existence is an end in
itself.
Personhood has no component of individual human differences, but rather
by definition excludes the tastes, talents, and individual histories that
differentiate one from another.
o Property and Theories of the Person:
Locke: “every Man has a Property in his own Person…” “the Labour of
his Body, and the Work of his hands are properly his.”
Since we own our body (limbs), then it is property for personhood.
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Economic Incentives
- Economic Incentives: what motivates you to behave in a certain way, while preferences
are your needs, wants, and desires. Economic incentives provide you the motivation to
pursue your preferences.
o Extrinsic Incentives: come from outside of a person.
o Intrinsic Incentives: psychological incentives and are internal to the person.
- Intellectual Property Rights make the public good a private one. The laws create artificial
scarcity of knowledge. This is because creators do not have the necessary incentive unless
they have accorded some means to control their knowledge. Thus, unless this is done, they
lack the necessary economic incentive -> Utilitarian Theory of Intellectual Property
- Utilitarian Theory of Intellectual Property:
o We have intellectual property systems because it has the effect on the betterment
of the society. The betterment of the society is to be assessed in the economic
success of the countries.
- Incentive Theory:
o The protection given to intellectual property is an incentive to individuals, not only
to create works of the mind, but also to publicize and disseminate them into the
public. This is done to encourage creativity and publicity.
o These works require investment in terms of time, money, and effort. Thus, without
protection, people will not invest on them. However, if the work of a mind is not
made available to the public, it is not useful. Upon expiry of the period of
protection, the public will start to use the properties.
o The need to pay the rights owner a royalty or fee may increase the price of the
product or service to which intellectual property right relates. It can be seen as a
kind of tax on knowledge and information.
o Even if consumers are prepared to pay the prices charged by the right owners, the
latter may not meet the demands of the public in sufficient quantities. This will
lead to compulsory license.
o The grant of rights has little positive effect in promoting investment that is required
for the production of new inventions, technical innovation, literary and artistic
productions and the like.
o Whilst no monopolies in the strict sense are applied by economists, intellectual
property rights have the potential to be used to anti-competitive effect, particularly
where they are pooled together or used as a lever to obtain other ends.
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o Intellectual property rights can be used to suppress free speech and access to
information.
<https://www.abyssinialaw.com/study-on-line/item/468-theories-of-intellectual-property>
Art. 414: All things which are or may be the object of appropriation are considered either:
1. Immovable or real property; or
2. Movable or personal property.
The painter, sculptor or other artist shall have dominion over the product of his art even before it
is copyrighted.
The scientist or technologist has the ownership of his discovery or invention even before it is
patented.
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CONSTITUTIONAL BASIS:
U.S. Constitution, Art. 1, §8, par. 8: To promote the Progress of Science and useful arts, by
securing for limited times to authors and inventors the exclusive right to their respective writings
and discoveries;
Phil. Const. Art. XIV, §13: The State shall protect and secure the exclusive rights of scientists,
inventors, artists, and other gifted citizens to their intellectual property and creations, particularly
when beneficial to the people, for such period as may be provided by law.
Philippine Laws
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Sec. 1625: An assignment of a credit, right, or action shall produce no effect as against third person,
unless it appears in a public instrument, or the instrument is recorded in the Registry of Property
in case the assignment involves real property.
RA 8293: IP Code of the Philippines Part IV. Sec 1-5, 171, 172
- Check laws
CASES
ISSUES:
1. W/N plaintiff is entitled to protection, despite not having copyrighted the said design?
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HOLDING:
1. NO. Par. 33 of Patent Office Administrative Order No. 3 provides that an intellectual
creation should be copyrighted thirty days after its publication, if made in Manila, and
within sixty days if made elsewhere. Failure to do such renders such creation public
property. In the case at bar, there is no copyright for the design in question. Furthermore,
the contention that the publication of the design was a limited one nor that Amb. Neri was
the only one authorized to use it is not acceptable. If Amb. Neri was the sole person who
had the absolute right to use the same, then it should have been him who would be the
aggrieved party and not Santos.
2. NO. If there was such a limited publication or prohibition, it was not shown on the face
of the design. When the purpose is a limited publication, but the effect is general
publication, irrevocable rights thereupon become vested in the public, in consequence of
which enforcement of the restriction becomes impossible. The effect of offering for sale
a dress manufacture with an original design not protected by a copyright nor a patent is to
divest the owner of his common law rights, and thus, anyone is free to copy the design of
the dress.
When Amb. Neri distributed the design, the plaintiff lost control of his design and
the necessary implication was that there had been a general publication, there having been
no showing of a clear indication that a limited publication was intended. The right to
determine whether a work can be published belongs to the author, but this exclusive right
is confined to the first publication. Once published, it is dedicated to the public, and he
loses the exclusive right to control subsequent publication by others.
3. NONE of the provisions are applicable.
ISSUES:
1. W/N the playing and singing of musical compositions, which were copyrighted, inside the
establishment constitute a public performance for profit within the meaning of the
Copyright Law of the Philippines?
a. If so, can the appellee be held liable therefor?
HOLDING:
1. NO. Appellant bases it claims that playing or singing a musical composition is universally
accepted as performing the musical composition and that the playing and singing in the
establishment for the entertainment of the customers, despite the latter not paying for
music but only for the food, on Sec. 3c of the Copyright Law.
While there was indeed “public performances for profit”, as it has been held that
the playing of music in dine and dance establishments which was paid for by the public in
purchases of food and drink constituted ‘performance for profit’ within the Copyright Law,
however, the appellee cannot have been said to have infringed the Copyright Law. The
composers of the said compositions have waived their right in favor of the general public
when they allowed their intellectual creations to become property of the public domain
before applying for the corresponding copyrights for the same.
The Supreme Court ruled that an intellectual creation must be copyrighted thirty
days after its publication, if made in Manila, and within sixty days, if elsewhere. Failure of
such renders such creation as public property. Thus, if the general public has made use of
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the object prior to the copyright application, the law deems the object to have been
donated to the public domain and the same can no longer be copyrighted.
The songs have only been registered after its release to the public. And thus, it is
beyond question that they had become public property and thus, beyond the protection of
the Copyright Law.
The TRO was denied, as well, as the prayer for a writ of preliminary injunction. The MR
of the same order were both denied. The petition for certiorari was also denied before the CA.
ISSUE: W/N CA committed error when it dismissed the petition for certiorari when the
petitioner was the assignee of the copyrights over the musical compositions in question, and thus,
he has a clear legal right to a writ of preliminary injunction as BMG and Chan violated its
copyrights over the said composition and still, they continue to distribute the same?
HOLDING:
NO. There is only manifest abuse of discretion in the issuance of an injunctive writ when
the following requisites are not present:
1. There must be a right in esse or the existence of the right to be protected;
2. The act against which the injunction is to be directed is a violation of such right.
Thus, the trial court was correct in denying said prayer.
Furthermore, respondent Chan, being undeniably the composer and author of the lyric
of the two songs, is protected by the mere fact alone that he is the creator thereof, conformably
with RA 8293, under Sec. 172.2, that works are protected by the sole fact of their creation. An
examination of the complaint shows that the two contracts yields not the existence of the requisite
right protectable by the provisional relief, but rather a lingering doubt on whether or not there is
such a right.
The said contracts stipulated that the two contracts would expire two years after if
publisher fails to use in any manner the said two compositions. Anent the copyrights obtained by
petitioner on the basis of the two contracts, such purported copyrights are not presumed to subsist
because Chan had put in issue the existence thereof. It is noted that Chan revoked and terminated
such contracts on July 30, 1997 or almost two years after Bayanihan wrote its letter regarding the
songs, three years prior to the filing of the complaint. Thus, petitioner had no more right that is
protectable by injunction.
Kho v. CA
FACTS:
Kho filed a complaint for injunction and damages with a prayer for writ of preliminary
injunction against Summerville and Ang Tiam Chay. Petitioner alleges that petitioner, doing
business under the name of KEC Cosmetics, is the registered owner of the copyrights Chin Chun
Su and Oval Facial Cream Container/Case. She also has the patent rights on Chin Chun Su &
Device and Chin Chun Su for medicated cream after purchasing it from Quintin Cheng, the
registered owner thereof in the Supplemental Register of the Philippine Patent Officer. She further
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alleged that Summerville advertised and sold petitioner’s cream products under the brand name,
Chin Chun Su, in similar containers, thereby misleading the public and resulting in the decline of
sales and income. And thus, respondents should be enjoined from infringing on the copyrights
and patents of the petitioner.
Respondent alleged as their defense that Summerville is the exclusive and authorized
importer, repacker, and distributor of Chin Chun Su Products manufactured by Shun Yi Factory
of Taiwan, and that the said company authorized Summerville to register its trade name Chin Chun
Su Medicated Cream with the PPO, and that KEC’s obtaining of copyrights was through
misrepresentation and falsification; and that Cheng’s authority has been terminated already by the
Taiwanese company.
The trial court granted the application for preliminary injunction, which prompted for
respondents to file an MR, but it was denied. They filed a petition for certiorari in the CA for the
nullification of the writ of preliminary injunction, which was granted by the CA. They ruled that
the registration of the trademark by KEC with the supplemental register of the Bureau of Patents,
Trademarks, and Technology Transfer cannot be equated in the principal register, which is duly
protected by the Trademark Law.
In La Chemise Lacoste, SA vs. Fernandez, the Court ruled that “registration in the
Supplemental Register serves as notice that the registrant is using or has appropriated the
trademark. But the very fact that the trademark cannot as yet be on guard and there are certain
defects and obstacles, which the use must still overcome vindicates one’s claims of an exclusive
right to use it. Thus, it would be deceptive for a party with nothing more than a registration in the
Supplemental Register to posture before courts of justice as if it the registration is in the Principal
Register. This runs counter to the precept embodied in Rule 124 of the Revised Rules of Practice
before the PPO in Trademark Cases.
Petitioner filed for an MR on the decision made by the CA.
The trial court went on to hear petitioner’s complaint for final injunction on damages.
They ruled in favor of respondents, holding that petitioner is barred from using the trademark
Chin Chun Su, and upholding the right of respondents to use the trademark, but also recognized
the copyright of petitioner over the container.
The MRs were denied.
ISSUE:
1. W/N CA erred in ruling in favor of respondents upon its failure to:
a. Rule on petitioner’s Motion to Dismiss?
b. Refusing to promptly resolve the MR?
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FACTS:
In 1982, a P&G subsidiary in Italy used a key visual in the advertisement of its laundry
detergent and bleaching products. This visual is known as the “double-tug” or “tac-tac”
demonstration, which shows the fabric being held by both hands and stretched sideways. This was
used in an ad entitled “All aperto” to demonstrate the effects on fabrics by a liquid bleach called
“Ace.” Since then, P&G used the said visual on the advertisement of its products, even in the
Philippines.
Unilever aired a 60-s television commercial of its “Breeze Powerwhite” laundry product
called “Porky”. The said TVC included a stretching visual presentation and sound effects almost
identical or substantially similar to P&G’s “tac-tac” key visual. The following year, after Unilever
aired the said commercial, P&G used the same old television commercial from Italy, dubbing the
Italian language to Filipino for the same product as it was now available in the Philippines. Unilever
filed a complaint with the Advertising Board of the Philippines to prevent P&G from airing the
“Kite” television advertisement.
Procter and Gamble, PH filed a complaint for injunction with damages and a prayer for
TRO and/or writ of preliminary injunction against petitioner, Unilever.
Judge Gorospe issued an order granting the TRO, and settled a hearing for Unilever to
show cause why the writ of preliminary injunction should not issue. Unilever gave an Answer with
opposition to the preliminary injunction, which prompted P&G to file a reply. Unilever gave a
rejoined to reply, and P&G filed its surreply to the rejoinder.
The writ of preliminary injunction was issued with a bond of Php100,000.00. Petitioner
appealed to the CA finding errors in the judgment, when the public respondent issued the writ of
preliminary injunction when it violated the Rules on Evidence and Procedure, specifically Sec. 3a
of Rule 58 of the Revised Rules of Court and of prevailing jurisprudence.
CA dismissed the petition for certiorari for lack of merit.
ISSUE:
1. W/N the writ of preliminary injunction that was issued by the trial court and affirmed by
the CA lacked any evidence of private respondent’s clear and unmistakable right to the
writ?
HOLDING:
1. NO.
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Despite petitioner’s submission that P&G is not entitled to the relief demanded
due to petitioner’s ownership of Certificates of Copyright Registration for which
advertisements, while P&G has none to its “double-tug” or “tac-tac” key visual, the Court
disagreed, ruling that Sec. 2 of PD49 stipulates that the copyright of a work or intellectual
creation subsists from the moment of its creation. Thus, the creator acquires such
copyright upon its creation.
The intellectual creator’s exercise and enjoyment of copyright for his work and the
protection given by law is not contingent or dependent on any formality or registration.
The writ of preliminary injunction is not to be taken as a prejudgment of the merits
of the case due to its nature of being tentative and that it may be dissolved during or after
trial, if the court finds that the plaintiff is not entitled to such. The determination made by
the Court is merely for the purposes of the preliminary injunction without passing upon
the merits of the case.
A preliminary injunction is to be taken as a provisional remedy intended to provide
protection to parties for the preservation of their rights or interests during the pendency
of the principal action. Its sole purpose is to preserve the status quo until the merits of the
case can be heard fully. It is generally based solely on initial and incomplete evidence. The
issuance of such is based on the discretion of the court and generally cannot be interfered
with except in cases of manifest abuse. There was no abuse when the petitioner was given
all the opportunity to oppose the application for injunction.
NOTES:
Copyright – set of rights that are for the protection of literary and artistic works.
Patent – solution
Trademark – any visible sign